In last week’s post, we explored how the case of Adnan Syed serves as a powerful vehicle to teach Strickland v. Washington in the investigative criminal procedure classroom. This week, in my third post of this series, we explore how investigative decisions made on June 13, 1994—the night of Nicole Brown Simpson and Ron Goldman’s murders—offer students an unparalleled opportunity to apply the Fourth Amendment’s exigent circumstances doctrine.
A primer on exigent circumstances
“Exigent circumstances” is one of the most pervasive exceptions to the Fourth Amendment’s warrant requirement. Given the frequency with which the terms are used, though, it is easy to use the terms without considering their meaning. Broadly speaking, use of exigent circumstance terminology conveys an emergency situation. That is, so goes the rationale, because of the time limitations imposed by that situation, it would be nearly impossible for an officer to obtain a search warrant prior to investigating. What confuses many students (as well as lawyers and sometimes even judges) is that the doctrine of exigent circumstances is more of a concept than an exception, and it does not lend itself to a precise definition.
Because the concept of exigent circumstances is broad by definition, the legal issue in many cases often focuses on whether the factual circumstance presented should appropriately be categorized as an exigency that justifies a warrantless search. As a result, it is critical to understand what factual circumstances qualify as accepted exigencies. The Supreme Court’s decision in Minnesota v. Olson, 495 U.S. 91 (1990), is instructive on that topic.
In Olson, police suspected that Joseph Ecker had just robbed a gas station and fatally shot the station’s manager in the process. Further suspecting that he had a partner, the police drove to Ecker’s home where they were met at the same time by an Oldsmobile vehicle. Upon seeing the police, the vehicle took “evasive action,” but spun out of control and came to a stop. Officers pursued the driver and passenger on foot. They captured the driver, Ecker, but the passenger escaped.
The next morning, police received a call from an informant who told them that the passenger, Robert Olson, was hiding at a particular address with two women. After surrounding the home, several officers, “[w]ithout seeking permission and with weapons drawn, … entered the upper unit and found [Olson] hiding in a closet.” Olson made an inculpatory statement shortly thereafter.
Olson filed a motion to suppress his statement, which the trial court denied. The Supreme Court of Minnesota reversed the trial court’s decision on appeal, holding that no exigent circumstances existed to justify the officers’ entry. Olson was, after all, surrounded and would have been apprehended had he attempted to flee. The Supreme Court affirmed, noting that it was “not inclined to disagree with [the Minnesota Supreme Court’s] fact-specific application of the proper legal standard.” Most importantly for our purposes, the Court also approved of the Minnesota Supreme Court’s definition of exigent circumstances:
The Minnesota Supreme Court applied essentially the correct standard in determining whether exigent circumstances existed. The court observed that “a warrantless intrusion may be justified by hot pursuit of a fleeing felon, or imminent destruction of evidence, or the need to prevent a suspect’s escape, or the risk of danger to the police or to other persons inside or outside the dwelling.” The court also apparently thought that in the absence of hot pursuit there must be at least probable cause to believe that one or more of the other factors justifying the entry were present and that in assessing the risk of danger, the gravity of the crime and likelihood that the suspect is armed should be considered.
Note the Court’s use of “probable cause” in that last sentence. The Court is indicating that, in order for exigent circumstances to apply, police must possess probable cause to believe that one of the listed circumstances is present. That sentence is a good reminder for students that, regardless of whether a warrant is required, probable cause is always required for an exigent circumstance to apply—no matter the category of exigency.
Who is OJ Simpson?
On June 15, 1995, jurors sat and watched as former NFL football player and movie star O.J. Simpson attempted to fit his hands into a pair of cashmere-lined leather gloves. To the dismay of prosecutors, the gloves did not fit. The moment handed Simpson’s defense attorneys Johnnie Cochran and Robert Shapiro perhaps one of the most well-known defense theories in history: “If it doesn’t fit, you must acquit.” And the jury did just that. On October 3, 1995, an estimated 100 million people nationwide tuned in to watch the dramatic finale to the trial of the century—“not guilty.”
A bit about Simpson
Orenthal James “O.J.” Simpson, nicknamed “The Juice,” was born on July 9, 1947, in San Francisco, California. Growing up, Simpson lived with his mother, Eunice Simpson, and father, Jimmy Lee Simpson, in the housing projects of the Potrero Hill neighborhood. Simpson attended Galileo High School in San Francisco where he played for the school’s football team—the Galileo Lions. Although Simpson was an All-City football player at Galileo, his less than mediocre grades kept him from attracting the attention of college recruiters. As a result, Simpson enrolled at City College of San Francisco in 1965, where he played as both running back and defensive back and was named to the Junior College All-American Team. His efforts earned him a full scholarship to play football at the University of Southern California. In 1968, Simpson’s senior year of college, he rushed for 1,709 yards and 22 touchdowns, and won the Heisman Trophy by the largest margin of victory in history.
By the time he was drafted number one overall by the Buffalo Bills in the 1969 NFL draft, Simpson was well on his way to becoming a household name. Simpson went on to earn a record-breaking 11,236 yards and 75 touchdowns throughout his pro career. Off the field, Simpson established himself in the film and television industry, starring in six major motion pictures before retiring from the NFL in 1979. His fame grew after retiring when he became a commentator for Monday Night Football and The NFL on NBC.
In 1977, Simpson met his second wife: eighteen-year-old Nicole Brown, a waitress at a private night club called “The Daisy.” Although Simpson was still married to his first wife, Marguerite, Simpson and Brown began dating. The two married in 1985, roughly five years after Simpson’s divorce from Marguerite and his retirement from football. The marriage between Brown and Simpson lasted nearly seven years, during which time Simpson pleaded no contest to spousal abuse. Brown filed for divorce on February 25, 1992, citing irreconcilable differences.
The Crime
From 1992 to 1994, Brown and Simpson were regulars at an upscale Italian restaurant in Brentwood, California known as the Mezzaluna Trattoria. Among the staff at the Mezzaluna was a waiter and aspiring restaurateur named Ronald Goldman. In May of 1994, Brown and Goldman struck up a relationship that would blossom into a close friendship over the next six weeks. Friends of Brown and Goldman maintained that the relationship was always platonic.
On June 13, 1994, at approximately 12:10 a.m., Nicole Brown and Ronald Goldman were found stabbed to death on the front walkway of Brown’s residence. Once Los Angeles Detectives arrived on scene, they observed bloody footprints and found a blue knit hat and a left-handed brown leather glove with blood stains near the foot of Goldman’s body. As detectives surveyed the interior of the home, they discovered Brown’s and Simpson’s two young children hiding inside.
Detectives next drove to Simpson’s home at 360 N. Rockingham Place, approximately two miles from Brown’s home. Simpson’s home was fully enclosed by walls and fences, and visitors could only enter through two electronically controlled gates. Detectives made numerous attempts to contact someone inside the home, yet were unsuccessful. But when blood was found on the door of a white Ford Bronco parked outside of Simpson’s home, Detective Mark Fuhrman made the controversial decision to climb over the home’s exterior wall and open one of the home’s electronic gates, which enabled other detectives to enter the premises.
Once inside the compound, detectives discovered that the rear of the property contained a single-story guest house, where Simpson’s friend, Brian Kaelin, was living. Kaelin told police that on the night of June 11, he heard a loud disturbance that he believed was caused by an earthquake. Electing to investigate the area where Kaelin said the sounds had originated, Detective Fuhrman proceeded to the exterior of the guest house and discovered a blood-stained brown leather glove that appeared to be the right-handed match to the glove found at the murder scene. Later DNA testing revealed that the glove contained genetic markers of Nicole Brown, Ron Goldman, and O.J. Simpson.
On June 17, 1994, after failing to turn himself over to police, Simpson engaged police in a low-speed pursuit in a white 1993 Ford Bronco (different from the one found at Simpson’s home, which was impounded prior to the chase). TV stations interrupted coverage of the 1994 NBA Finals to broadcast the incident live, with an estimated 95 million people tuned in to watch the chase and Simpson’s arrest. That chase kicked off what became known as the “trial of the century.”
How does the investigation into OJ Simpson benefit students in the classroom?
The Simpson case can enrich a classroom discussion about exigent circumstances in a variety of ways. I’ll offer just three examples here. But first, let’s set the stage a bit. Although the infamous bloody glove would give Simpson’s “dream team” defense counsel a mantra that helped win the case, Simpson’s lawyers originally sought to prevent the prosecution from using the right-handed glove entirely. On June 29, 1994, Simpson filed a motion to suppress virtually all of the evidence uncovered as a result of the search outside his home on the morning of June 13. Simpson argued that he manifested a reasonable expectation of privacy in his property by surrounding it with a fence and locked gates. Moreover, he contended, detectives had no evidence of any threat to life, health, or property to justify a warrantless entry onto the premises. The State of California, in response, highlighted two facts: (1) the presence of blood on the Ford Bronco, and (2) Simpson’s unaccompanied children at the murder scene. Based on those two facts, the prosecution argued, “it would be difficult to imagine a greater dereliction of duty had the officers . . . failed to further their investigation . . . by climbing over the wall.”
Police-created exigency?
Notice that officers went to O.J. Simpson’s home right after discovering the dead bodies of Nicole Simpson and Ronald Goldman. Why is that? The state contended that “[d]etectives followed up by going to Defendant’s residence for the purposes of (i) death notification, (ii) placement of Defendant SIMPSON’s two children who were now in police protective custody, and (iii) a concern for the welfare of the defendant and/or other individuals associated with the SIMPSONS.” But in another portion of its opposition to Simpson’s motion to suppress, the state acknowledged that it knew at the time officers went to Simpson’s home that he “had been embroiled in previous domestic violence situations, one of these resulting in the arrest of Defendant SIMPSON.”
Judge Kennedy-Powell would ultimately accept the state’s rationale. She wrote:
The person who is the next of kin to those children is the defendant. He’s their father. He’s the person that logically would be the one that would be called upon to take action, to take custody of those children. So I don’t find anything improper—in terms of the police conduct—with the idea that they are going to go to the Simpson home.
Maybe that logic is correct. But if police initially considered Simpson a suspect, did police create an exigency in violation of Kentucky v. King by approaching his home? After all, police “attempted to contact the occupants of the residence by ringing the gate bell for approximately ten (10) minutes.”
Categories of exigency?
Reviewing the categories of available exigencies from Olson, I ask students which one—exactly—applied? It is hard to pin down. The state listed numerous possibilities at varying points in its opposition filing. At the outset, the state noted that officers went to Simpson’s home in part out of “a concern for the welfare of the defendant and/or other individuals associated with the SIMPSONS.” According to the state, officers upon arrival rang the gate bell for roughly ten minutes, but no one responded. I ask students whether police had probable cause to believe an Olson exigency existed at that moment.
I then press a bit by asking whether things changed after officers observed blood on the 1994 Ford Bronco parked at the curb near Simpson’s home. I remind the class that, in addition to seeing blood, officers looked inside the truck’s window and saw “a package with a label indicating a return address to O.J. Simpson Enterprises.” A subsequent registration check of the car reflected that it was a rental. With that additional information, I ask students whether police—at that new moment—had probable cause to believe an exigency existed. If so, I persist by asking whether it was a different Olson exigency from the one that perhaps existed earlier (at the time when no one responded to police ringing the gate bell). By the way, the state would implicitly take the position that multiple exigencies existed, including that “Detective Fuhrman entered the property by climbing over the wall to determine whether there were additional victims or hostages.”
Regardless of how students conclude, the point of our discussion is to make clear that a specific exigent circumstance must exist to justify a particular police action. In other words, the phrase “exigent circumstances” does not automatically and categorically justify any and all warrantless police investigative activity.
The geographic scope of the exigency
Now, assuming that Detective Fuhrman could lawfully hop over the gate and enter Simpson’s property, I want students to understand that his authority to warrantlessly search was not unlimited. The question then shifts to where he was permitted to search (another question, of course, is how long he could search but this post does not address that). That matters, of course, because Detective Fuhrman found the bloody right-handed glove while on the Simpson property—the apparent match to the left-handed glove found at the murder scene. Recall what led to Detective Fuhrman locating the bloody glove: (1) Detective Fuhrman climbed over the gate; (2) he walked to the rear of the Simpson property; (3) he knocked on a door of the guest house; (4) the home’s occupant, Brian Kaelin, told Fuhrman that he heard an “earthquake” noise from the “south wall area behind his room”; and (5) Fuhrman discovered the glove at “the south wall area of the exterior of the guest house.”
With that sequence of events in mind, I first ask students where Detective Fuhrman was permitted to search. Asked in more detail, did the claimed exigency permit Detective Fuhrman to lawfully walk through the Simpson property, knock on the door of a different interior home, and ultimately walk around otherwise private areas of the full property? The answer to that question is critical in answering this question: Was Detective Fuhrman’s plain view seizure of the bloody glove lawful?
Students are usually eager to offer varying answers to both of those questions, and I generally steer classroom discussion according to their answers. But one point that students are often slow to pick up on, which is worth adding to classroom discussion, is the fact that Kaelin did nothing to investigate the noise outside of his guest house. It seems odd that Kaelin did not think the noise significant enough to justify calling the police, but the police themselves rely on that noise, in part, as an exigency justifying the continued investigation of Simpson’s property. Perhaps, then, Kaelin’s failure to investigate could have supported OJ’s defense arguing that no exigency supported Detective Fuhrman’s warrantless seizure of the right-handed bloody glove.
The totality of this classroom discussion matters because I want students to understand that the scope of the exigent circumstances doctrine is strictly circumscribed by the exigencies that justify the initial police investigative activity. The foregoing illustrations offer just a few examples of how you might use Simpson’s case in the classroom. Do feel free to email me if you’d like other examples and/or you’d like my take on how to answer the questions I raised above.
Looking ahead
I’ll be back next week with thoughts on how to discuss probable cause through the lens of John Wayne Gacy—one of this country’s most prolific serial killers.
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